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The buyer, Texan millionaire Richard Drake, does not dispute that Agnew’s told the agent negotiating his purchase that expert opinion was divided as to whether the painting – a half-length portrait of James Stuart, Duke of Lennox and Richmond – was by Anthony Van Dyck. But he claims that, vitally, the art dealers played down the importance of the opinion of leading expert Sir Oliver Millar, the Surveyor Emeritus of the Queen’s Pictures, who had told Agnew’s that while he thought the picture had been painted in Van Dyck’s studio, he did not believe that Van Dyck had touched it himself.

Sir Oliver also refused to include it in his catalogue raisonné on Van Dyck.
The dispute, which was brought to the High Court in London last week, has its roots in the sale by Sotheby’s of the contents of Ickworth, the Marquess of Bristol’s Suffolk estate, in 1996. The painting, featuring the cousin of Charles I, who offered to take the King’s place on the scaffold, was listed in Sotheby’s catalogue as “After Anthony Van Dyck” and as “an early version of the picture at the Louvre”.

Julian Agnew, director of Thomas Agnew & Sons, viewed the painting before the auction and came to the conclusion that Sotheby’s had made a mistake. He successfully bid for it at £36,000, believing it to be by Van Dyck himself, an opinion still held at Agnew’s and one supported by some experts in the field.

In June 1998, Agnew’s sold the picture to Mr Drake having negotiated the deal with New Orleans based art agent Steven Callan. Although Mr Callan, an expert in 19th century art but not Old Masters, was told of Sir Oliver’s opinion, he claimed in the witness box that Mr Agnew played down its importance.

“I was told that Sir Oliver was an expert and was writing a book (on Van Dyck) and this painting wouldn’t be included,” said Mr Callan. “But a book is a book and I was never informed of the importance of Sir Oliver. (I was told) he was one of many experts and he was wrong.”

Counsel for Agnew’s Charles Flint QC argued that the burden of proving the painting was not by Van Dyck was on Mr Drake, and to do this he had to show that no brushwork had been undertaken by the master.
“Why should Van Dyck have allowed an assistant to compose and paint a new portrait of a highly important member of the Court – but not himself actually apply any of the brushwork?” he asked.

Mr Flint further argued that even if it could be proved that the painting were not by Van Dyck, the case should be dismissed, adding: “Any attribution of an Old Master painting can only ever reasonably be understood as a statement of opinion, genuinely held and for which Agnew’s had more than reasonable grounds.”
The case is expected to last two weeks.

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